COPYRIGHTED MATERIAL INDEX

Transcription

1 INDEX Abandonment, cost and damage proof, contractors, 401 Acceleration: constructive, , 248 elements of, 203, delay causes, compensable delays, delay causes, excusable delays, directed, owner caused, cost and damage proof, contractors, Acceptance: authority and, constructive, 283 contract provisions, , 286 failure to make, delay causes, compensable delays, 245 final completion, formal, 283 generally, goods and materials, Uniform Commercial Code (UCC), limitations on finality of, nonconforming work, architect/engineer acceptance, 131 partial occupancy, AIA A-201, 283 federal government contracts, 284 points to remember, acceptance of work, 295 post-acceptance operation risks, project commissioning, revocation of, substantial completion, 287 types of, 283 Acts of God, delay causes, excusable delay, 240, Actual authority, inspectors, Actual authority, architect/engineer: AGC Document No. 200, 120 AIA A-201, 120 AIA B-141, 120 generally, , Adequate assurance of performance, Uniform Commercial Code (UCC), Affirmative action, federal contracts, Age Discrimination in Employment Act, 478 Agency construction management. See Alternative contracting methods Air quality, environmental regulation, Alternative contracting methods, 9-31 code compliance, 27 construction management, AGC contract documents, 15 agency CM, AIA contract documents, 15 CM/GC, safety liabilities and, 436 design-build contracts, architect/engineer liability issues, checklist for owners, contractor liability issues, design-builder s perspective, generally, issues to be addressed, performance specifications, secondary design review, shop drawings, generally, 9-10 multiprime contracts and fast-track projects, points to remember, alternative contracting methods, traditional delivery systems compared, Alternative dispute resolution (ADR): federal contract disputes, generally, Ambiguities, contract interpretation: constructive changes, 191, 200 design-build, resolution of, 19-20, American Arbitration Association (AAA), American Bar Association Model Procurement Code. See Model Procurement Code (ABA) American Institute of Architects (AIA): See also Architect/Engineer acceptance, 283, 286 actual authority of architect, 120 AIA A-201 General Conditions: acceptance, 283, 286 actual authority of architect, 120 arbitration, 514 construction change directive, 195 evidence of financial capability, 303 final completion, 287 grounds for default, 378 COPYRIGHTED MATERIAL 573

2 574 INDEX AIA A-201 General Conditions (continued) insurance, notice of claims, payment bond claimant definition, 355 pricing of changed work, 399 safety, 434 substantial completion, 287 unanticipated hazardous substances, , 428 warranties, 292 apparent authority, of architect, 122 arbitration, 514 changes clause, 195 default clause, 378 design-build contracts, 20 differing site conditions clause, environmental concerns, risk minimization, , 428 evidence of financial capability, 303 extra work, cost and damage proof, contractors, 399 inspection clause, insurance, notice checklist, 336 notice of claims, payment bond claims, 355 standard contract forms, family of, subcontract document, 154 subcontract termination, 162 warranties, Americans with Disabilities Act (ADA): conditions not covered, 476 disability defined, 476 employers covered by, 477 generally, reasonable accommodation, 477 undue hardship, 477 Anticipatory repudiation/adequate assurance of performance, Uniform Commercial Code (UCC), Anti-Kickback Act, 472 Apparent authority concept: architect/engineer, contract changes, inspectors, Appeals: arbitration, 517 federal contract disputes, Arbitration: See also Dispute Resolution; Litigation agreements and procedures, American Arbitration Association (AAA) rules, 519 arbitrator selection, architect/engineer decision and, Center for Public Resources (CPR) rules, effect on sureties, enforceability of agreements, 517 Federal Arbitration Act, generally, informality and limited appeals, International Chamber of Commerce (ICC) Rules, 520 multiple parties, complications of, 518 performance bonds, 375 rules of evidence and, 517 time and cost of, 515 Uniform Arbitration Act, 521 Architect/engineer, See also American Institute of Architects authority of, actual authority concept, , apparent authority concept, , construction phase of project, design phase of project, 119 implied authority concept, 121, interpret contract documents, notification of, by owner, 128, 194 certificates of progress or completion, design-build projects and, 16, dispute arbitration, generally, inspection and testing, , 270, failure to inspect, 128 job site accidents, 129 means and methods, 130 observation of defective work, liability for safety, 435 liability of contractor for design, 27-29, liability to contractor, 118 generally, 118 intentional torts, negligence and Economic Loss Rule, statutes of repose, third-party beneficiary, liability to owner, plans and specifications interpretation, points to remember, qualifications for project, 302 shop drawings and submittals review and approval, approval liability, 127 notice of deviations to, 127 review period, 128 specific provisions, other duties, 137 standard of care, Asbestos, environmental regulation, Associated General Contractors of America (AGC): AGC Docubuilder software, 17, , 308 AGC Document No. 200: acceptance, architect s authority, 120 bond claimant definition, 356 changes, 188 differing site conditions clause, 213 evidence of financial capability, 303 final completion, 287 grounds for default, 378 inspections, insurance,

3 INDEX 575 Interim Directed Change, 188, 194 notice of claims, 197 pricing changed work, safety, substantial completion, 287 unanticipated hazardous substances, 425 AGC Document No. 221, Contractor s Statement of Qualifications for a Specific Project, 303, AGC Document No. 261, 356 AGC Document No. 410, unanticipated hazardous substances, , 428 standard contract forms, family of, , subcontract document preparation, subcontract termination, 162 Attorneys, dispute resolution, Automatic stay: bankruptcy, relief from, , 493 Bankruptcy, automatic stay, automatic stay relief, , 493 automatic stay violation, sanctions for, 486 bankruptcy code, debtor s contracts, status of, affirmation or rejection, assignment, 492 minimizing impact on executory contracts, discharge, funds, constructive trust, contract funds, equitable lien, 498 guarantors, 502 joint check arrangements, 498 mechanic s lien, payment bond claims, recoupment, 500 setoff, surety s rights to, 500 generally, material and equipment, nondischargeable debts, 490 points to remember, bankruptcy, preferential transfers, exceptions to, Uniform Commercial Code (UCC), voidable preference rule, voiding security interests, 496 Bid shopping, Bidding, See also Contracts best value tradeoffs, bid bonds, extent of liability, 79 points to remember, bidding principles, surety refusal to provide performance bond and, 80 bid mistakes, contractor, obligations if mistake suspect, 68 private contracts, relief elements, state statutes, 67 timely notice of, withdrawal versus reformation, bid shopping, bid depository, 81 higher tier contractor, 80-81, subcontractor listing, 81 doctrine of promissory estoppel, 82-87, 153 damages related to, elements of, generally, license requirements, 34-36, 78 low bidder award, 98 lowest and best bid, past performance evaluations, challenges to, claims and, 63 generally, procedures, private contracts, generally, 60 protests, American Bar Association Model Procurement Code and, 70 Contract Disputes Act and bid protests, 532 contracting agency, courts, federal projects, GAO, generally, state and local governments, timing of, 71, 73, 76 responsible bidder, challenges to determination, 50 qualifications to be, 49-50, responsive bidder, competitive advantage, 51 defects in bid bond, 53 failure to acknowledge addenda, 52 generally, 51 minor informalities and, reservations or conditions in bid, reverse bid auctions, unbalanced bid and, site investigations, differing site conditions, recovery obstacles, Statute of Frauds, 86 subcontractor bids, and dispute avoidance, subcontractor capability and low price, Bonds: See also Payment bonds; Performance bonds bankruptcy, 500 bid, evidence of financial capability, 304 payment bond claims, performance bonds, subcontracts, considerations,

4 576 INDEX Breach of implied warranty, differing site conditions, Builder s risk insurance, , See also Insurance; Commercial general liability (CGL) insurance all risk vs. specified risk, 442 coverage trigger, Buyer s remedies, goods and materials, Uniform Commercial Code (UCC), 115 Capital requirements, evidence of financial ability: contractors, 150, 301, 303 generally, subcontractors, 151, 301 Cardinal Change, described, Center for Public Resources (CPR), CERCLA. See Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) Certificates of progress or completion, architect/engineer, Change orders: authority to order, architect/engineer, Construction Change Directive, AIA A-201, 195 constructive, contractor, in subcontract, 168 excessive, delay causes, compensable delays, , 245 Federal Acquisition Regulation (FAR) clause, generally, Interim Directed Change, AGC Document No. 200, 188 notification letter sample, 341 pricing changed work, written, contract changes, Changed conditions. See Differing site conditions Changes: Cardinal Change, changes clause, defined, 186 common law, departure from, purpose, 186 claims under payment bonds, 358 constructive changes: acceleration, , defective plans and specifications, generally, misinterpretation of plans and specifications by architect/engineer, misinterpretation of plans and specifications by owner, cost and damage proof, contractors, impact of multiple changes, impossibility/impracticability, points to remember, 210 recovery, authority to order, change to work required, generally, notice requirement, written change orders, written notice of claim required, subcontractors and, Changes clause, subcontract agreement, Charge of discrimination, EEOC, 475 Checklists: contractor response to termination notice, contracts in foreign states, 333 delay claim documentation, design-build, owner s, notice, , 537 pre-bid/pre-proposal environmental considerations, 332 qualifying project participants, qualifying the project site, subcontract agreement drafting: changes clause, default clause, disputes clause, indemnity clause, payment clause, scope of work, Civil Rights Act, Claim document: See also Dispute resolution; Federal contract disputes components of, dispute resolution, federal contract disputes, Clean Air Act, Clean Water Act, 419 Code compliance: design-build contracts, 27 violation, contractor recognition, 129 Commercial general liability (CGL) insurance: See also Insurance; Builder s risk insurance addition insured status, cost of defense, 441 deductibles, 441 environmental liability, 442 excess/umbrella, 441 layers of, 441 occurrence vs. claims-made coverage, subrogation, 442 third party insurance, 440 Common law bond, performance bonds: generally, 367 subcontracts, Communication, management and documentation, Compensable delays: See also Delays delay causes, excusable delays versus, inspection related, Compensable work time, Competing for the contract. See Bidding Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA): contribution, generally, 415 joint and several liability, 418 potentially responsible party (PRP): categories of, described, 415 operator, 417 transporter,

5 INDEX 577 Concurrent delay: See also Delays apportionment of damages for, described, liquidated damages and, 411 net recovery for, 246 Consequential damages: cost and damage proof, owner, 409 damage principles, Construction insurance. See Insurance; Builder s risk insurance; Commercial general liability (CGL) insurance Construction management. See Alternative contracting methods; See also Management and documentation Constructive acceptance: authority and, 131, formal acceptance versus, goods and materials, Uniform Commercial Code (UCC), standard contract forms and, Constructive changes: See also Change orders; Changes acceleration, , defective plans and specifications, generally, informal directives for extra work, 200 inspection related, 275, misinterpretation of plans and specifications by architect/engineer, misinterpretation of plans and specifications by owner, , 278 working under protest, subcontractors, Constructive trust, bankruptcy, Consumer Credit Reporting Act: background checks, consumer report defined, 465 generally, investigative consumer report, disclosures regarding, 466 violations of, 464 Consumer reporting agency, 465 Contract Disputes Act of See Federal contract disputes Contract funds, bankruptcy funds, Contract Work Hours and Safety Standards Act: federal government contracts, 472 requirements, 472 Contracting agency, bid protests, Contractor: See also Prime contractor; Subcontractor authority to make changes, 168 basic responsibility for differing site conditions, cost and damage proof, contract changes and extras, defective drawings or specifications, 404 inefficiency claims, owner-caused acceleration, owner-caused delay and disruption, wrongful termination or abandonment, 401 defenses of, terminations for default, delay damages, design-build projects, 16-18, environmental concerns, potentially responsible party, implied obligations, 96-97, implied warranties, 293 inspection by, liability for design, 27-29, liability to, project architect/engineer, 29-30, qualifications for project, , sponsorship of subcontractor claims, use of subcontractor s bid, enforcement of bid, 82-87, 153 letter of intent, obligations to award, 80-82, Contracts: See also Bidding; Bonds; Payment bond; Performance bonds; Subcontracts; Uniform Commercial Code (UCC) acceptance of work, 131, , 286 alternative. See Alternative contracting methods ambiguity resolution, 19-20, bankruptcy effect on, changes clause, conditions on enforcement, construed as a whole, 91 date of commencement, 235 date of completion, 235 defined, 2, delays, 96, , See also Delays differing site conditions, , See also Differing site conditions duty to seek clarification, environmental concerns, management practices, environmental concerns, risk minimization, excusable delay clauses, federal contract disputes. See Federal contract disputes formation context, framework of, management and documentation, goods and materials, Uniform Commercial Code (UCC), implied obligations, inspection clauses, insurance, , See also Insurance interpretation goal, 90 language interpretation, 90-94, 106 points to remember, interpretation of, pricing of extra work: AGC Document No. 200, AIA A-201, 399 FAR, 400 standard forms: AIA, AGC, EJCDC, 307 subcontract administration, termination for convenience, termination for default, terms defined in, time,

6 578 INDEX Copeland (Anti-Kickback) Act: federal government contracts, 472 federally financed projects, 472 requirements, 472 Correspondence: letter log samples, management and documentation, 314 Cost accounting records: cost and damage proof, 394 management and documentation, Cost and damage proof, See Liquidated damages contractor s damages, contract changes and extras, defective drawings or specifications, 404 differing site conditions, home office overhead, inefficiency claims, owner-caused acceleration, owner-caused delay and disruption, , subcontractor/supplier refusal to honor bid, wrongful termination or abandonment, 401 damage principles, betterment, 395 causation, 394 compensatory nature of, consequential damages, contract provisions, cost accounting records, , 394 cost reasonableness, 400 direct damages, mitigation of damages, punitive damages, 393 dispute resolution, generally, 390 owner s damages, consequential damages, 409 cost to complete, delayed completion, , 408 direct damages, 407 liquidated damages, , reduction in value, 408 termination for default, points to remember, , 406, 413 pricing claims, methods for, home office overhead, measured mile, 406 modified total cost method, quantum meruit method, 398 segregated cost method, 397 total cost method, termination for convenience, contractor recovery, Courts: bid protests and, Economic Loss Rule, federal contract disputes, litigation, Critical path method of scheduling (CPM): concurrent delay, demonstrate delay, use of, , generally, 236 management and documentation, , Customs and usages, contract interpretation, 94 Daily reports: claim preparation, 507, 509 differing site conditions, record of, management and documentation, sample documents, 346 Damages, bidding: See also Cost and damage proof bid bonds, subcontractor refusal to honor bid, Davis-Bacon Act: application to construction projects, 473 disputes, related to, 533 enforcements of, 474 generally, prevailing wages under, 473 site of work, 473 wage classifications, 473 Debts, nondischargeable, bankruptcy, 490 Default clause, subcontract agreement, Default, terminations for. See Terminations Defective performance remedies, subcontract administration, 179 Defective plans and specifications. See Plans and specifications Delay claims analysis, claims, process, See also Delays; Liquidated damages Delayed performance remedies, subcontract administration, Delays, , , See also Acceleration; Critical path method of scheduling; Damages; Liquidated damages; Management and documentation; Schedules causes of, access problems, 242 acts of God, compensable delays, examples of, concurrent delays, excessive change orders, 245 excusable delays, examples of, , failure to accept work, 245 failure to approve plans, shop drawings, 243 failure to coordinate prime contractors, 243 failure to furnish materials or labor, 242 failure to inspect, 244 failure to issue timely directives, 243 failure to make payment, 244 improper site preparation, 242 labor problems, 248 suspensions of work, weather, 247 checklist for delay claim documentation, concurrent delay, treatment of, , 411 contract time, 234 CPM schedules and claims for,

7 INDEX 579 delay damages, , , elements, 250 generally, 250, 401 liquidated, , overhead, , early finish, right to, 237 Eichleay overhead, , excusable delays, generally, excusable versus non-excusable, final completion date, 236 final payment waiving delay liability, 412 float in schedule, use of, generally, implied duties, no damage for delay clauses, implied duty not to hinder or delay, 234 milestone completion dates, 235 no damage for delay clauses and, no damage for delay clauses, exceptions to, no damage for delay clauses, statutory prohibitions, non-excusable delays, 241 notice requirements, notice to proceed delays, notification letter sample, 339 notification of, owner s inspection, 244, owner-caused, cost and damage proof, contractors, payment bond claims and, 358 points to remember, responsibility for, apportionment of, schedules and, types of schedules, 236 use in establishing delay, standard contract forms, submittal review by architect/engineer, 128 substantial completion date and, , 411 time of essence clause and, 235 Demonstrative evidence, dispute resolution, Design-build contracts. See Alternative contracting methods DFARS Regulation, claim certification requirement, Differing site conditions: basic responsibility for, contract indications of conditions, express, contract indications of conditions, implied, defined, 211 operation of clause, exculpatory clauses, generally, 218 notice requirements, 217, recordkeeping requirements, site investigations, failure to conduct, Type I condition, elements of, Type I condition, examples, Type II condition, elements of, Type II condition, examples, Type II condition, performance of expected material, 224 points to remember, recovery obstacles, recovery without clause, breach of implied warranty, plans and specifications, duty to disclose, 230 misrepresentation, mutual mistake, 231 site investigation: failure to conduct, 225 generally, standard clauses, AGC, 213 AIA, conditions covered, EJCDC, Federal Acquisition Regulation (FAR), generally, notice requirements, 217 site investigation, typical clause, 224 Type I and Type II conditions, 217 Direct damages: claim resolution, cost and damage proof, contractors, 397, cost and damage proof, owners, damage principles, Disability (Americans with Disabilities Act): conditions not covered, 476 definition of, 476 generally, reasonable accommodation, 477 undue hardship to employees, 477 Disability leave, Discharge, bankruptcy, Discovery, litigation, Dispute arbitration. See Arbitration; See also Dispute resolution Dispute avoidance (subcontract administration), , generally, pricing, subcontractor characteristics, Dispute clause, subcontract agreement, , Dispute resolution, , See also Arbitration; Federal contract disputes; Litigation arbitration: agreements and procedures, 519 American Arbitration Association (AAA) rules, 519 arbitrator selection, Center for Public Resources (CPR) rules, effect on surety, enforceability, 517 Federal Arbitration Act, generally, 514 informality,

8 580 INDEX Dispute resolution (continued) International Chamber of Commerce (ICC) rules, 520 limited appeals, 517 multiple parties, complications of, 518 party drafted procedures, federal and state law considerations, time and cost of, 515 Uniform Arbitration Act, 521 architect/engineer role, alternatives to litigation (ADR): arbitration, 514 dispute review boards, 513 generally, 513 med-arb (mediation/arbitration), 519 mediation, 514 mini-trials, 513 attorneys and experts, claim document components, contemporaneous records, 509 damages, calculation and proving, demonstrative evidence, early recognition of claim, generally, 505 litigation, court system, discovery, generally, 521 judge or jury selection, 525 trial, negotiation and settlement, 512 points to remember, 527 Severin Doctrine and subcontractor claims, subcontractor s claims, assertion by contractor, Doctrine of promissory estoppel, bidding, Documentation. See Management and documentation Drawings and specifications. See Plans and specifications Duty to cooperate: contract obligations, 96-97, inspections, subcontract administration, Duty to coordinate: multi-prime contractors, 243 subcontract administration, 97, Duty to disclose, differing site conditions, recovery without clause, 230 Economic Loss Rule, architect/engineer liability, Eichleay formula overhead recovery, , Employee background investigations, Employer s general duty (OSHA), 467 Enforceability, arbitration agreements, 517 Engineers Joint Contract Documents Committee (EJCDC): contractor responsibility for design errors, 26 differing site conditions clause, environmental concerns, risk minimization, 424 standard contract forms, 307 Environmental concerns: See also Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA); Mold commercial general liability insurance and, 447 contribution, differing site condition, 223 environmental risks checklists, 332 generally, 414 joint and several liability, 418 management techniques, 305, 332, mold, points to remember, potentially responsible party, contractor as, regulation and liability sources, air quality, asbestos, and lead, CERCLA, storm water runoff, 419 risk minimization, contractual, generally, insurance, pre-bid/proposal inquiry, scope of work, 421 Equal Employment Opportunity Commission (EEOC), 475 Equal Pay Act, 478 Equipment: bankruptcy, failure to provide, delay causes, compensable delays, 242 payment bond claims, Equitable lien, bankruptcy, 498. See also Liens Errors and omissions insurance, 141 Estimating, management and documentation, Evidence, demonstrative, Exculpatory clauses, differing site conditions, Excusable delays, , See also Delays Excuse of seller s performance, Uniform Commercial Code (UCC): allocation of deliveries, 114 commercially impracticable, 114 force majeure clause, 114 increased costs, 114 Executive Order 11246: federal government projects, federally financed projects, Exempt employees (wage and hour laws), 468 Experts, dispute resolution, Express warranties, described, 109, Extra cost: cost and damage proof, contractors, impact of multiple changes, notification letter sample, 343 Extra work: cost and damage proof, contractors, inspection related, notification letter sample, 342 payment bond claims, 358 subcontractor,

9 INDEX 581 Fair Credit Reporting Act, 464 Fair Labor Standards Act (FLSA), False Claims Act, definition of claim, 539 Family and Medical Leave Act (FMLA), Fast track projects, See also Alternative contracting methods Federal Acquisition Regulation (FAR): bid mistakes, bid protests, best value tradeoff, cost and damage proof, contractors, 400 changes clause, differing site conditions clause, electronic bids, 58 federal contract disputes, inspection of construction clause, 271 materials and workmanship clause, 271 notice checklist, 335, 537 permits and responsibilities clause, 271 reasonable cost, demonstrating, 400 responsible bidder, responsive bid, termination for convenience clause, 386 termination for default clause, use and possession prior to completion clause, 273 Federal Arbitration Act, See also Dispute resolution Federal contract disputes, alternative dispute resolution (ADR), appeal final decision, filing of, deadlines, default termination issues (Fulford Doctrine), 562 process to file, 561 subcontract claims, 561 waiver of late filing not allowed, 561 attorneys fees recovery, certification requirements, CDA language, Department of Defense Appropriations Authorization Act of 1979, 552 DFARS Regulation claim certification, generally, modification of claim amount, monetary threshold for, other certification requirements, subcontractor claims, 554 supporting data, Truth in Negotiations Act certification, who may certify, claim(s), contractor, deadlines for submission, differing definitions of, 539 elements of, generally, government claims, notice requirements, what constitutes, who may submit, written submission, 540 Contract Disputes Act of 1978, bid protests and, 532 breach of contract claims, 532 contracting officer s final decision, contents of, deadlines for, contractor claims, deadlines for claim submission, disputes not covered by, express or implied contracts, 532 forum selection, 560, Freedom of Information Act, generally, government claims, importance of decisions to construction industry, 528 labor law disputes and, 533 laches doctrine defense, 536 notice requirements, 335, past performance evaluations and, 532 points to remember, requirement for written submission, 540 Severin Doctrine, 182 sources of law relating to, statute of limitations, subcontractor claim certification, 554 subcontractor claims and, ; transfer and consolidation of cases, 565 untimely appeal, effect of, who may claim, Wunderlich Act, 530 Federal Court Improvement Act of 1982, Federal Courts Administration Act of 1992, 545 Federal government: See also Federal contract disputes Bankruptcy Code, bid protests, contract disputes, See Federal contract disputes convenience terminations, 386 courts and litigation, default clause, terminations, differing site conditions, environmental regulation by, inspection, generally, low bid award, notice requirements, 335 past performance evaluations, payment bond claims (Miller Act), responsible bidder, reverse bid auctions, subcontract agreement, suspension of work clause, delay causes, Federal Trade Commission, employee background checks, 464 Field order status chart, sample documents, 348 Finance, management and documentation, Financial resources, of subcontractor, subcontract administration, flow-down obligations, subcontract document, 172, 174 Formal acceptance, constructive acceptance versus: construction projects, goods and materials, Uniform Commercial Code (UCC),

10 582 INDEX Freedom of Information Act, federal contract disputes, Fulford Doctrine, 562. See also Terminations General Services Board of Contract Appeals (GSBCA): bid protest jurisdiction eliminated, 73 responsible bidder, 50 responsive bid, 55 Government Accountability Office (formerly General Accounting Office) (GAO): bid protests, challenges to responsibility determinations, 50 federal contract disputes, 531 relation to agency protests, 72 responsive bidder, Hazardous wastes, regulation and liability sources, CERCLA, 415 Hybrid contracts, Uniform Commercial Code (UCC), Immigrants (illegal): Employment Eligibility Verification Form (I-9), generally, Immigration Reform and Control Act, Implied authority concept: architect/engineer, 121 contract changes, Implied obligations, contracts, , , Implied warranties, described, 97-99, 109, 293 Impossibility/impracticability, contract changes, Indemnification: environmental liabilities, performance bonds, safety, 436 Indemnity clause, subcontract agreement, Inefficiency claims, cost and damage proof, contractors, Insolvency, contracts for goods and materials, Uniform Commercial Code (UCC), Inspection: acceptable work, rejection of, 278 architect/engineer s role in, , authority to change requirements during, contractor, 271, cost of, disruption caused by, failure to conduct, delay causes, 244, generally, of goods, Uniform Commercial Code (UCC), inspector s role in, limitations on owner s, obligation to ensure compliance, owner s right, not duty, 275 points to remember, 294 rejection and correction, 276 scope of, 275 standard clauses, Insurance, See also Builder s risk insurance; Commercial general liability (CGL) insurance additional insured, CGL, alternatives to traditional, 443 captive insurer provided, 443 company response to claim, concurrent causes of loss, 453 contract requirements, environmental concerns, risk minimization, 442 importance of, mold claims and, owner controlled insurance program (OCIP), 443 points to remember, prompt action to protect coverage, proof of, routine coverage issues, builder s risk insurance, commercial general liability insurance, 440, 449 standard contract clauses, 444 subrogation by insurer, 442 types of, 440 builder s risk, commercial general liability, errors and omissions, 443 waiver of subrogration, 445 Intentional torts, architect/engineer liability, Intermittent partial strike, International Chamber of Commerce (ICC), 520 Interpretation, contracts: See also Contracts ambiguities, resolution of, 19-20, 94-95, 200 architect/engineer role in, construed as a whole, 91 contract duty to seek clarification, custom and usage as aid to, 94 gaps in contract, Uniform Commercial Code, 106 implied obligations and, 18, , , 213, 234, , implied warranties and, 97-99, 109, 293 order of precedence and, parties conduct and, parties prior dealings and, points to remember and, terms defined and, general terms, 91 party defined terms, 91 technical terms, 91 Investigative consumer reports: disclosure regarding, 466 generally, Job site logs, management and documentation, Joint check agreements, bankruptcy, 498 Judge or jury litigation, 525

11 INDEX 583 Labor affiliation. See Union status Labor problems, delay causes, 248 Labor, failure to provide, delay causes, 242 Laches doctrine defense, federal contract disputes, 536 Lead, environmental regulation, Liability: commercial general liability insurance, 427, of contractor, as designer, 27-29, to contractor, architect/engineer, 29-30, environmental, See also Environmental concerns limitation of, subcontract administration, 177 payment bonds: extent of, waiver of, 353, performance bonds, arbitration and surety s liability, defenses to, extension of surety s liability, increase in, surety s defenses to, payment bond claims, Licenses: design-build contracts, subcontractors, evidence of qualification, 151 Liens: equitable, bankruptcy, 498 mechanic s liens and bankruptcy funds, 501 partial lien waivers, 178 payment bond claims and, 359, Lines of communication, management and documentation, Liquidated damages: benefit to contractors, cost and damage proof, owners, defenses to, final payment, 412 concurrent delays, 411 owner caused delays, 411 waiver, 412 generally, provision as penalty, provision, validity of, 410 subcontracts and liquidated damage provision, 412 Litigation, , See also Arbitration; Dispute resolution; Federal contract disputes court system, discovery, generally, 521 insurance company, litigation with, 448 judge or jury selection, 525 live testimony, profile of trial, trial, Live testimony, trials, litigation, Loss, risk of, contracts for goods and materials, Uniform Commercial Code (UCC), Low bid award, described, Management and documentation, change orders, written directives required, checklists: contracts in foreign states, 333 notice, prebid/preproposal environmental considerations, 332 qualifying project participants, qualifying the project site, subcontract agreement drafting, , , contract framework, 307 correspondence, 314 cost accounting records, daily reports/jobsite logs, , 507, 509 delay claims, differing site conditions, dispute resolution, contemporaneous records, 509 documentation and notice requirements, environmental concerns, 332, estimating, foreign state project concerns, 306, 333 lines of communication, 311 meeting minutes, 314 photographs/videotapes, points to remember, project documentation system, qualifying, project participants, qualifying, architect/engineer, 302 contractor/subcontractor, owner, project site, qualifying, , 332 project type qualifying, , response to termination notice, rights, responsibilities, and risk definition, risk avoidance, sample documents, correspondence logs, daily report, 346 field order status chart, 348 notice checklists, notice letters, notice of backcharge work, 347 request for information, 344 telephone conversation memorandum, 345 schedules, , standard contract forms, , See also American Institute of Architects; Associated General Contractors of America; Engineers Joint Contract Documents Committee standard operating procedures, status logs, Materials: See also Uniform Commercial Code (UCC) bankruptcy, failure to provide, delay causes, compensable delays, 242

12 584 INDEX Mechanics lien, bankruptcy funds, Meeting notes, management and documentation, 314, 509 Miller Act: See Payment bonds; Performance bonds; See also Bonds employee payment guarantee, 472 generally, performance bonds, 368 Misrepresentation: differing site conditions, recovery without clause, surety s defense to liability, payment bond claims, Model Procurement Code (ABA), bidding procedures, 70 Modified total cost method, pricing claims methods, Mold: insurance and, management plan to limit liability, Multiprime contracting, alternative contracting methods, National Labor Relations Act (NLRA), National Labor Relations Board (NLRB), 461 Negligence: See also Tort law; Insurance architect/engineer liability, bid mistakes, relief elements, 66 Negotiation, dispute resolution, 512 No-damages-for-delay clause: generally, 259 limits on enforcement, relationship to implied duties, Nondischargeable debts, bankruptcy, 490 Non-exempt employees, Nonresponsive bid, described, Nonsolicitation/distribution policy, Nontraditional picketing, 462 Notice of backcharge work, sample documents, 347 Notice requirements: See also Timely notice bid mistakes, of breach, contracts for goods and materials, Uniform Commercial Code (UCC), changes, checklists, 313, , 537 delays, claims process, differing site conditions, 217, dispute resolution, 509 federal contract disputes, 335, management and documentation, payment bond claims, 360 subcontract agreement, 167 Occupational Safety and Health Act: compliance checks, 467 general duty, 467 generally, inspections, 467 warrants, 467 Occupational Safety and Health Review Commission, 467 Office of Federal Contract Compliance Programs (OFCCP), 479 Older Workers Benefit Protection Act, 478 On-call time, Oral agreements, subcontracts, dispute avoidance, Order of precedence, contract interpretation, Overtime wage, Owners: acceleration caused by, cost and damage proof, contractors, bid mistakes, obligation if mistake suspected, 68 cost and damage proof: actual damages, 258, consequential damages, 409 direct damages, generally, liquidated damages, , damages for, termination for default, defective plans and specifications, constructive change, delay and disruption caused by, contractor s cost and damage proof, , delay causes, 243 design-build projects, checklist for, directed work, constructive change, 200 environmental liability of, 416 failure to coordinate multiple prime contractors, 243 inspection of work by, misinterpretation of plans and specifications by, constructive changes, owner damages, qualifying the owner, ratification by, contract changes, 194 remedies of, terminations for default, safety liability of, subcontractor s claims and, Parallel prime contracting, alternative contracting methods, Partial lien waivers, pay applications and, subcontract administration, 178 Partial strike (intermittent strike), Parties conduct, contract interpretation, Pay applications, partial lien waivers and, subcontract administration, 178 Payment bonds, See also Miller Act American Institute of Architects, AIA-A201, 355 architect/engineer representation regarding, 121 Associated General Contractors of America, AGC Document No. 261, 356 bankruptcy funds, defined, 351 delay cost, 358 extra work cost, 358 generally, 351 lien rights, 359 Little Miller Act,

13 INDEX 585 Miller Act, pay when paid provisions and, 359 points to remember, 363 required by statute, statute of limitations on claims, subcontract agreement, surety s defenses to liability, timely notice of claims against, 360 waiver of rights, , who may claim under, work qualified for coverage, Payment, timely, failure to provide, delay causes, compensable delays, 244 Payment obligations, subcontract agreement, Performance bonds, alternatives (Subguard), arbitration, effect on surety, common law v. statutory, 367 distinguished from insurance, 365 extension to third parties, fundamentals of suretyship, generally, indemnification, liability: defenses to, increase in, Miller Act, 368 points to remember, subcontract agreement, surety s entitlements to funds, surety s obligations, Permits, design-build contracts, Photographs, management and documentation, Plans and specifications: See also Spearin Doctrine adequacy of, 18, defective: constructive changes, cost and damage proof, contractors, 404 delay causes, compensable delays, design-build contracts, failure to provide, delay causes, interpretation of, architect/engineer, misinterpretation of, by owner, constructive changes, Portal-to-Portal Act, 470 Postliminary time, 470 Preferential transfers, bankruptcy, Preliminary time, 470 Prevailing wage (Davis Bacon Act), 473 Pricing claims methods, modified total cost method, quantum meruit method, 398 segregated cost method, 397 total cost method, Pricing, subcontract agreement, dispute avoidance, Prime contractor: See also Contractor; Subcontractor bid mistakes, bid shopping, 80-82, duty to cooperate, 96-97, duty to coordinate, 97, 175 enforcement of subcontractor bid, 82-87, failure to coordinate or cooperate, delay causes, compensable delays, federal contract disputes, See Federal contract disputes subcontractor financing, subcontract administration, Prior dealings, contract interpretation, Private contracts, bidding, 60 Project commissioning, Project designer. See Architect/Engineer Proof of insurance, contracts, Protests, bids. See Bidding; Government Accountability Office (GAO) Public contracts. See Contracts Punitive damages, damage principles, 393 Purchase orders, goods and materials. See Uniform Commercial Code (UCC) Qualifications of subcontractor, subcontract administration, , Quantum meruit, pricing claims methods, 398 Recordkeeping. See Management and documentation Recoupment, bankruptcy, 500 Reformation of bid, bid mistakes, Regulation: See also Federal Acquisition Regulation (FAR) design-build contracts, environmental concerns, 415: See also Environmental concerns safety concerns, Rehabilitation Act, 480 Rejection of goods and materials, Uniform Commercial Code (UCC), Reputation, of subcontractor, subcontract administration, 150 Request for information (RFI): dispute resolution, 509 environmental assessments, sample document, 344 Resource Conservation and Recovery Act of 1976, 415 Responsible bidder, described, Responsive bid, described, 51 Risk of loss, contracts for goods and materials, Uniform Commercial Code (UCC), Safety: See also Occupational Safety and Health Act; Occupational Safety and Health Review Commission contract provisions, indemnification, 436 OSHA, points to remember, responsible parties, worker s compensation and, 437 Salting, 461 Salts (Union): definition of, 461 response to,

14 586 INDEX Schedules, management and documentation, , See also Acceleration; Delays Scope of work, subcontract agreement, Secondary design review, design-build contracts, Segregated cost method, pricing claims methods, 397 Seller s remedies, contracts for goods and materials, Uniform Commercial Code (UCC), Service Contract Act of 1965: application to facility support, 474 disputes related to, 533 Setoff, bankruptcy, Settlement, dispute resolution, 512 Severin Doctrine, subcontractor claims and, Sexual harassment, 476 Shop drawings and submittals: design-build contracts, failure to review/approve, delay causes, 243 logs, review and approval of, architect/engineer, Site conditions. See Differing site conditions; See also Site investigations Site investigations, differing site conditions: extent, failure to conduct, 225 hidden conditions and, qualifying the site, typical clauses, 224 Site of the work, Davis Bacon Act, 473 Site preparation, defective, delay causes, 242 Spearin Doctrine: constructive changes, defective plans and specifications, contract obligations, 18, defective plans and specifications, delay causes, design-build contracts, 18 differing site conditions and, Specifications. See Plans and specifications; See also Spearin Doctrine Standard forms, management and documentation, Standard of care, architect/engineer, Standard operating procedures, management and documentation, State and local governments: authority to issue changes, 192 bid protests, low bidder award, mistake in bids, payment bond claims, subcontractor claims and Severin Doctrine, subcontractor qualifications, 151 Status logs, management and documentation, Statute of Frauds, bid enforcement, 86 Statute of limitations: contracts for goods and materials, Uniform Commercial Code (UCC), exceptions, generally, 111 modifications of, 111 federal contract disputes, appeal deadlines, federal contract disputes, general limitation, Statutes of repose, architect/engineer liability, Statutory bond, performance bonds, 367 Storm water runoff, environmental regulation, 419 Straight time wage: deductions/credits to, 467 generally, 469 Subcontractor: See also Contractor; Prime contractor; Subcontracts bid shopping, 80-82, contractor sponsorship of subcontractor claims, doctrine of promissory estoppel, 83-86, 153 federal contract disputes, claim certification, 554 federal contract disputes claim submission, 538 payment bond claims, proof of insurance, qualifying, , reliability, Severin Doctrine and subcontractor claims, Subcontracts: agreement preparation, changes clause, default clause, delay claims, 166 disputes clause, federal government projects, , 538, 554 flow-down obligations, 156 generally, indemnity clause, liquidated damages provision, 412 payment bond surety and, payment obligations, scope of work, standard forms, use of, union status, subcontractor, , bonding considerations, checklists for subcontract agreements: changes clause, default clause, disputes clause, indemnity clause, payment clause, scope of work, dispute avoidance, defective performance remedies, 179 delayed performance remedies, 166,